Citation: R v Drew [2023] NSWDC 187
Court: District Court of NSW
Date: 8 June 2023
Judge: Priestley SC, DCJ
Background
The offender appeared for sentencing on a single charge of robbery while armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The offence occurred on 21 February 2022 on a bridge in Grafton, when the offender produced a steak knife in a stabbing motion and demanded a necklace from a victim who was walking with a female friend.
The offender had been released on parole only 18 days earlier, following a term of imprisonment for being armed with intent to commit an indictable offence. He was arrested on the same day as the robbery, found wearing the victim's necklace, with the knife later located near a motel where he had been seen discarding an object. His parole was revoked following his arrest.
The sentencing proceedings took into account an agreed statement of facts, a psychologist's report, a breach of parole report, and submissions from both parties.
Legal Issues
- What was the appropriate level of objective seriousness for the offence?
- What weight should be given to the offender's significant background of disadvantage, trauma, and mental health conditions in assessing moral culpability?
- How should the competing sentencing purposes of rehabilitation, deterrence, community protection, and denunciation be balanced?
- Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the balance of term
- Whether, and to what extent, the sentence should be backdated to account for time already spent in custody
Decision
Objective seriousness: Priestley SC DCJ accepted the offender's submission that the offence fell below the mid-range of objective seriousness. The offending appeared impulsive with minimal planning, and the intensity of the threat was assessed as low-level, reflected in the offender's own apologetic remarks to the victim immediately afterwards and his offer to exchange cannabis for the necklace. However, the use of a knife and the stabbing motions meant the offence could not be placed at the lowest end of the range.
Subjective matters and moral culpability: The offender received a 25 per cent discount on sentence for his early guilty plea. The psychologist's report, which the Crown expressly accepted, documented severe adverse childhood experiences including domestic violence, parental substance abuse, and physical abuse by the offender's father. While in juvenile custody, the offender was subjected to sexual and physical abuse by justice officers. At the time of the offence, the psychologist assessed him as suffering from PTSD, major depressive disorder, and a substance use disorder. These factors significantly reduced the offender's moral culpability, though the court noted they did not eliminate the need for community protection given the serious and escalating criminal record.
Balancing sentencing purposes: The court acknowledged the tension between the offender's disadvantaged background (pointing toward rehabilitation) and his pattern of reoffending (pointing toward deterrence and community protection). Drawing on R v Henry, Priestley SC DCJ emphasised rehabilitation as the primary sentencing consideration, given the offender's youth and the absence of any meaningful prior rehabilitation efforts. The court found that the period already spent in custody had substantially served the purposes of denunciation and community protection, and that a longer parole period would better support a structured treatment plan.
Special circumstances and backdating: A finding of special circumstances was made, based on the offender's youth, the risk of worsening institutionalisation resulting from extensive time in custody since the age of 13, and the need for extended supervision to facilitate rehabilitation. The sentence was backdated to 21 May 2022, with three months of the remaining parole period attributed solely to the earlier offence.
Orders Made
- The offender was convicted of the offence under section 97(1) of the Crimes Act 1900 (NSW).
- The offender was sentenced to a term of imprisonment with a non-parole period of 13 months commencing 21 May 2022 and expiring 20 June 2023, with a balance of term of 14 months expiring 20 August 2024.
Key Takeaways
- A conviction for armed robbery under section 97(1) of the Crimes Act 1900 (NSW) was assessed as below the mid-range of objective seriousness where the offending was impulsive, minimally planned, involved a low-level threat, and bore unusual features such as a remorseful conversation and an offer to barter.
- Severe adverse childhood experiences, including domestic violence, parental substance abuse, and abuse while in juvenile detention, were treated as significantly reducing the offender's moral culpability, consistent with the principles in Bugmy v The Queen.
- Where a young offender has spent the majority of their adult life in custody with little exposure to rehabilitation programs, the District Court may emphasise rehabilitation as the primary sentencing objective, even in the face of serious and escalating recidivism.
- Special circumstances justifying a reduced non-parole period relative to the head sentence can be established by the combination of youth, entrenched institutionalisation risk, and a clear need for extended post-release supervision and treatment.
- Backdating a sentence to a point before the expiry of a revoked parole period is available where the court determines that a portion of that period should be credited against the new sentence, with the remaining time attributed to the earlier offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De la Rosa [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346